Conditional Use Permit verus Variance
Is there an Amber Book 40 Minutes of Competence (or any other reliable source) that expands on the Conditional Use Permit?
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CUPs are usually reserved for specific uses in a zone district and you have to go through a more involved process to get your use permit, such as a public hearing. Use by Right, on the other hand, would have a much lower barrier to cross, as you are entitled to build that use on your property (given you meet all other standards). CUPs often have an expiration date should a project never go through.
That AB slide is a bit weird, they aren't exactly correlated with each other (often). Variances are when you cannot meet the literal requirements of the code because of some hardship (or minor deviations as permitted). This is usually related to physical characteristics of the property - setbacks, area, height, etc. CUPs are simply an AHJ requiring a more involved process to get your use permitted on that property.
One such example in my past work: A property was zoned for community commercial. Basic commercial uses were granted by right, but the client wanted to put a self-storage facility on there. The self-storage facility was allowable through a CUP process in that zone district. In this case, it meant public hearings and whatnot to determine compatibility, while an office building or retail center would have likely just gone through administrative approval.
This was taken from Fort Worth's code and sums it up quite well:
Conditional uses are those uses which are generally compatible with the permitted land uses in a given zoning district, but which require individual review of their proposed location, design and configuration, and the imposition of conditions in order to ensure the appropriateness of the use at a particular location within a given zoning district. The conditional use permit is a zoning overlay that supplements the primary underlying zoning district classification by adding the specified use not otherwise allowed by right in the base zoning district. -
I currently volunteer on my local Board of Adjustment and I have done several years of development work for various clients, so this is in my wheelhouse for sure. I really do encourage designers to volunteer for these boards. Our way of thinking and analysis is highly valuable and is in the public's best interest.
Variance: this is best described as needing to deviate from written code for a given hardship or other unusual circumstance where you cannot comply with code. Usually this is a result of oddly shaped lots, currently nonconforming lots and conditions as a result of changes to the code over the years (being grandfathered). Floodplain regulations may have a role as this relates to HSW of the property and is a valid hardship. Especially on small lots in an urban interface. We must raise the building and we have no other alternative to be compliant with building codes, floodplain elevations (FEMA or local), etc.
Use by Right: you are entitled to that use on your property per the zoning district you are in. This assumes you follow the rest of the code requirements.
CUP: you must apply for a CUP to grant that use on your property as allowed through the code and the additional requirements imposed on you. This is used by municipalities to exert control on specific uses where they might generally be allowed, but they don't want them allowed everywhere. This might be commercial uses in a residential zone and light industrial uses in a commercial zone. The corner store is fine every here and there, but not everywhere. Manufacturing is okay in this commercial district, but not that one, as the intent is different. The language varies per AHJ, but for all intents and purposes this captures the intent of the conversation.
If I were to rewrite that slide from Amberbook, I would compare CUPs with "Use by Right", and look at variances as a separate conversation about what to do if you cannot comply with code for some reason -- existing conditions, lot size, lot shape, so on. Boards of adjustment (or analogous names) are responsible for this analysis and approval or denial of a variance request. From personal experience: much of what we do is allowable area/height and setback variances. In the commercial world this seems to revolve around sign codes and allowable areas given a certain standard such as (primary) street frontage.
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